Salvador Oil, LLC. and Dartex Energy Corporation v. Riotex Swabbing, Inc. ( 2018 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00282-CV
___________________________
SALVADOR OIL, LLC AND DARTEX ENERGY CORPORATION, Appellants
V.
RIOTEX SWABBING, INC., Appellee
On Appeal from County Court at Law No. 2
Tarrant County, Texas
Trial Court No. 2018-002492-2
Before Birdwell, J.; Sudderth, C.J.; and Walker, J.
Per Curiam Memorandum Opinion
MEMORANDUM OPINION
Appellants Salvador Oil, LLC and Dartex Energy Corporation filed a late
notice of appeal from the trial court’s July 30, 2018 judgment.1 But they filed the
notice of appeal, along with a motion to extend the time to file it, within fifteen days
after the due date, which gives them an opportunity to explain the late filing. See Tex.
R. App. P. 10.5(b)(1)(C), 26.3. In the motion to extend, counsel’s only explanation for
the late filing is that he “received instructions from Appellants to file an appeal in . . .
this case at the deadline.”
The motion does not reasonably explain the need for an extension. See Tex. R.
App. P. 10.5(b)(1)(C). “[A] reasonable explanation is ‘any plausible statement of
circumstances indicating that failure to file within the [specified] period was not
deliberate or intentional, but was the result of inadvertence, mistake or mischance.”
Hone v. Hanafin, 104 S.W.3d 884, 886 (Tex. 2003) (quoting Meshwert v. Meshwert, 549
S.W.2d 383, 384 (Tex. 1977)). “Any conduct short of deliberate or intentional
noncompliance qualifies as inadvertence, mistake or mischance.” Id. at 887. The
motion does not explain why appellants waited until “the deadline” to instruct counsel
to file the notice of appeal. A deliberate or intentional decision to delay filing an
appeal does not entitle a party to an extension. See Stephens v. Stephens, No. 2-10-197-
CV, 2010 WL 3433108, at *2 (Tex. App.—Fort Worth Aug. 31, 2010, no pet.) (mem.
1
The notice of appeal was due August 29, 2018, but appellants did not file it in
the trial court until September 4, 2018.
2
op.) (“[I]ntentionally choosing to delay the filing of a notice of appeal until the trial
court disposes of a motion for new trial does not excuse the failure to timely file a
notice of appeal.”); Amegy Bank of Texas, N.A. v. Titan Servs., LLC, No. 2-09-420-CV,
2010 WL 87095, at *1 (Tex. App.—Fort Worth Jan. 7, 2010, no pet.) (mem. op.)
(“Here, Appellant’s explanation in the motion does not indicate an unawareness of
the deadline for filing a notice of appeal, a misunderstanding of applicable appellate
rules, or a miscommunication between counsel and clients.”); Inman’s Corp. v.
Transamerica Commercial Fin. Corp., 825 S.W.2d 473, 477 (Tex. App.—Dallas 1991, no
writ) (“Should an appellant, cognizant of a deadline, fail to decide, the deadline
decides the issue by default.”).
Although we are to construe explanations liberally in this context, see Hone, 104
S.W.3d at 886–87, appellants’ explanation does not show inadvertence, mistake, or
mischance and, by failing to explain why appellants waited until the deadline to
instruct counsel to file the notice of appeal, is tantamount to no explanation at all. See
Hall v. U.S. Bank Nat’l Ass’n, No. 03-09-00010-CV, 2009 WL 2914245, at *2 (Tex.
App.––Austin June 5, 2009, pet. dism’d w.o.j.) (mem. op.). Therefore, we dismiss the
appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a), 43.2(f); Linville v. Leuty
Avenue Apartments, No. 02-18-00186-CV, 2018 WL 3763934, at *1 (Tex. App.––Fort
Worth Aug. 9, 2018, no pet. h.) (mem. op.).
Per Curiam
Delivered: October 11, 2018
3